YOUTH LEGAL CENTRE
Convictions and criminal records
1
Introduction
If you plead guilty or are found guilty of an offence in court, there are a few things you
will probably want to know:
(a)
Will I have a criminal record?
(b)
Who can see my criminal record?
(c)
Will my criminal record affect me getting a job?
(d)
Will my criminal record get wiped later on?
These are not easy questions to answer. The answer depends on factors such as your
age, the type of offence you committed, and your previous criminal history.
2
What is a conviction?
So what is a conviction? This can be confusing, as a reference to a “conviction” can
mean one of two things:
(a)
that you have been found guilty of an offence. Being "convicted" of an
offence means that a court has found you guilty, or that you have pleaded
guilty to an offence; or
(b)
that the court has recorded a conviction against you. If you are found
guilty the court will usually, but not always, record a conviction. Having a
conviction recorded means that you have a criminal record.
In this document when it refers to a “conviction”, it means a recorded conviction.
3
When will a court record a conviction?
3.1
Adults
If you are found guilty of an offence committed as an adult (i.e. aged 18 or over), a
conviction will usually be recorded automatically.
In special circumstances, the court may deal with you under section 10 of the Crimes
(Sentencing Procedure) Act 1999 (NSW), which means the court may:
(a)
dismiss the charge without a conviction, or
(b)
put you on a good behaviour bond for up to 2 years (a conviction will only
be recorded if you breach the bond).
When deciding whether to deal with you under section 10, the court will consider things
like your age, background, health, mental condition, any prior criminal record, the
seriousness of the offence and any special circumstances. Section 10 will usually only
be used if you have committed a minor offence and you don’t have much of a criminal
record, or if the circumstances are really exceptional.
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3.2
Children’s Court
A Children’s Court magistrate cannot record a conviction against you if you are under 16
years of age.
If you are aged 16 or over, the magistrate can decide whether or not to record a
conviction against you.
3.3
Children in other courts
If you are a juvenile and your matter is too serious for the Children’s Court, you will go to
the District or Supreme Court.
These courts may record a conviction against you even if you are under 16.
3.4
Children with traffic matters in Local Courts
If you are old enough to have a licence (16 years old for cars, 16 years and 9 months for
motorcycles) and you are charged with a traffic offence, you will go to the Local Court
unless you have a related criminal charge that the Children’s Court is dealing with.
The Local Court may use adult or children’s sentencing options. If it uses children’s
sentencing options, the rules are the same as in the Children’s Court. If is uses adult
sentencing options, the rules are the same as for adults.
3.5
Children dealt with under the Young Offenders Act
If your criminal matter has been dealt with by warning, caution or youth justice
conference under the Young Offenders Act 1997 (NSW), a conviction will not be
recorded against you.
Records of conferences and cautions may be taken into account by the Children's Court
in different proceedings (eg in sentencing you if you commit another offence), but they
cannot be taken into account by an adult court.
3.6
On-the-spot fines (infringement notices)
When you are given an infringement notice (on-the-spot-fine), no conviction is recorded
against you (whether you pay the fine or not).
However, if you elect to take the matter to court, and the court finds you guilty (or you
plead guilty) a conviction may be recorded against you.
If you get an infringement notice for a traffic offence (eg speeding, not displaying ‘pplates’), this will show up on your RMS traffic record. Although these infringement
notices are not convictions, they can be taken into account by a court when sentencing
you for a traffic offence.
4
What is a criminal record? How is it different from a “criminal
history” or “police record”?
4.1
Different types of records
There are many different terms used to describe a person’s criminal record. These
include “criminal record”, “criminal history” and “police record”. These terms are often
used quite imprecisely. Set out below is an explanation of what is included in each of
these records and how the particular record can be used.
4.2
Criminal records
A criminal record is a record of convictions against you. If you are found guilty of an
offence but no conviction was recorded, this matter will not form part of your criminal
record.
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Your criminal record should not list any spent convictions (see part 6 of this document)
or non-convictions. If by mistake it does, ask the police or a lawyer to help you fix this.
(see part 7 of this document).
4.3
Criminal history
Your criminal history is different from your criminal record.
Your criminal history contains information about all of your previous court matters, even
if you were found not guilty, or your charge was dismissed under the Mental Health
(Forensic Provisions) Act 1990, or you were found guilty but no conviction was recorded.
Courts are usually allowed to see your full criminal history (including matters that were
withdrawn or dismissed) when making decisions about bail.
Courts are usually allowed to see details of all findings of guilt against you (including
section 10s and spent convictions), when sentencing you for further offences.
4.4
Court alternatives history
A court alternatives history shows police cautions and youth justice conferences that you
had as a juvenile.
The Children’s Court is allowed to see this when deciding how to deal with you for an
offence. Other courts, and the general public, are not allowed to see it.
4.5
Traffic record
Traffic convictions and infringements are separately recorded by Roads and Maritime
Services (RMS). Police access the records from the RMS on request.
Infringement notices (on-the-spot fines) for traffic offences will show up on your traffic
record. Although these are not convictions, they can be taken into account by a court
when sentencing you for a traffic offence.
4.6
Police Charge Management System
The police have several record-keeping systems which have been consolidated into one
Charge Management System. This includes a lot of information, in addition to criminal
records, such as:
•
questioning by police;
•
warrants;
•
arrests;
•
police warnings and formal cautions given to children;
•
youth justice conferences;
•
charges;
•
fingerprints and photos taken when you are charged;
•
people who are victims of crime or witnesses;
•
convictions;
•
section 10 dismissals and discharges; and
•
sentences.
Police may also have “intelligence” about people on the COPS system (Computerised
Operational Policing System). This information is gathered from a variety of sources and
can often be inaccurate. The information can be kept indefinitely.
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Police can use all of the above information for their own purposes but would generally
not be able to disclose it to employers and the general public. You may be able to get a
copy or printout of this information through a GIPA (Government Information Public
Access) request.
Generally, there is no way to have these records destroyed. However, the Police
Commissioner has discretion to have information destroyed on request in some
situations (eg the charges were withdrawn or dismissed, a discharge without conviction
is more than 15 years old and there have been no other convictions, or the information
relates to very old and minor convictions).
Fingerprints and photographs may also be destroyed in some circumstances (see
document on Police powers and your rights).
5
What is the effect of having a conviction or a criminal record,
and who can get access to my record?
5.1
Generally
A criminal record can affect many parts of your life, including your chance of getting a
job, some types of licences you can apply for, visa applications to visit foreign countries,
and sentencing outcomes at court.
Sometimes even non-convictions (eg. section 10s) and spent convictions (see part 6 of
this document) can affect you.
5.2
Employment
There are some types of jobs which will not be open to you if you have certain types of
convictions (eg working with children, some government jobs, employment requiring
security clearance such as working at an airport).
Most types of jobs are open to people with criminal records. However, many employers
choose not to employ someone with a criminal record, even if the person’s record is
quite old and does not affect their ability to do the job. Discrimination based on criminal
record is a real problem, and it is possible to complain about it to the Australian Human
Rights Commission, but legal rights for people in this situation are very limited.
If you apply for a job, your prospective employer does not automatically get access to
your criminal record – first they have to obtain your consent.
In practice, many employers will require you to organise your own criminal record check
by obtaining a National Police Certificate (see part 7 of this document). You can apply to
the NSW Police Force to release your criminal record directly to a government
department.
5.3
Jobs requiring disclosure of spent convictions
You may be required to disclose your full criminal history (including spent convictions or
non-convictions) if you are applying for a job as a:
•
judge or magistrate;
•
Justice of the Peace (JP);
•
police officer;
•
Corrective Services staff member;
•
teacher or teacher’s aide;
•
fire fighter (only if you have been dealt with for arson).
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5.4
Working with children
It is illegal for an employer to employ a person in any child-related employment if that
person has been convicted of certain serious sex or violent offences.
If you wish to apply for any child-related work, you must get a Working With Children
Check clearance. The Working With Children Check involves a national criminal history
check and a review of findings of workplace misconduct.
The result of a Working With Children Check is either a clearance to allow you to work
with children for 5 years, or a bar against you working with children. Cleared applicants
are subject to ongoing monitoring, and relevant new records may lead to the clearance
being revoked.
Employers do not get access to your criminal record. All they get to find out is whether or
not you have Working With Children Check clearance.
For further information, see document on The Working With Children Check or go to
http://www.kidsguardian.nsw.gov.au/working-with-children/working-with-children-check.
5.5
Licences
You may be required to disclose your criminal record (including spent convictions and
non-convictions) if you are applying for certain licences, including:
•
security industry licence (see separate document on Getting a security
licence);
•
casino operator or casino employee licence;
•
tow truck operator licences or driver certificate;
•
firearms or prohibited weapons licence;
•
real estate, stock and station, business, strata management or on-site residential
property management licence; and
•
dangerous occupations regulated by Workplace Health and Safety regulations.
There is usually a right of appeal to the Administrative Decisions Tribunal when a licence
is refused on the grounds of a criminal record.
5.6
Insurance
You may also find it hard to get insurance for your home, car or business if you have
been convicted of offences such as stealing, fraud or arson.
5.7
Getting an Australian passport
Past convictions are not relevant to the issuing of an Australian passport. The
Department of Foreign Affairs and Trade is only concerned if you have an outstanding
warrant for your arrest; if you are on Commonwealth parole, surety or bond; if there are
any relevant bail conditions; or if a court has ordered you not to apply for a passport.
5.8
Citizenship and deportation
If you are not an Australian citizen, you may be deported or your visa may be cancelled
on “character” grounds. You will not pass the “character” test if you have a “substantial
criminal record” (for example, sentenced to imprisonment for over 12 months).
Visas may also be refused or cancelled on character grounds even where no conviction
has been recorded. The Minister for Immigration may decide that you do not pass the
character test if you have had an association with a person, group or organisation that
the Minister reasonably believes was or is involved in criminal conduct.
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5.9
Overseas travel
A criminal conviction may also affect your ability to get a visa to travel overseas to other
countries. The granting of visas will be assessed on a case by case basis and will
depend on the nature and seriousness of the offence and punishment.
5.10
Voting
Your right to vote will also be affected by a conviction if you are required to serve a
prison sentence of over one year (or three years for federal elections). Once your
sentence is finished your voting rights will resume.
5.11
Jury service
You will be excluded from jury service for life if you are found guilty or convicted of:
(a)
an offence punishable with life imprisonment if committed in NSW
(regardless of where the offence was committed);
(b)
a terrorist act;
(c)
an offence under Part 7 of the Crimes Act 1900 (public justice offences,
eg perverting the course of justice); or
(d)
a sexual offence.
You will also be excluded from jury service if:
•
you are currently serving a prison sentence or are being detained in NSW or
elsewhere. In many cases you will qualify for jury service a few years after
completing your sentence;
•
you have done a period of detention for an offence committed when you were
under 18, you are excluded from jury service for 3 years after the end of the
period of detention;
•
you are bound by an order made in NSW or elsewhere following a criminal
charge or conviction, eg a good behaviour bond or an AVO;
•
you are disqualified by a court from holding a driver’s licence for 12 months or
more.
5.12
Bail and sentencing for further offences
A court can take into account your previous convictions when sentencing you for an
offence. If you already have a criminal record, you will usually be treated more harshly
than a first offender.
Courts can also take into account previous offences even when no conviction has been
recorded (eg dealt with under section 10) or if the conviction has been spent (see Part 6
of this document) .
If you have been found guilty of a juvenile offence but no conviction was recorded, this
matter may be taken into account by the Children’s Court if it is sentencing you for other
offences. However, other courts cannot take into account juvenile matters if no
conviction was recorded and you have been out of trouble for at least two years
immediately before being charged with the current offence.
Your full criminal history (including matters that have been dismissed) can also be taken
into account by police and courts when deciding whether or not to grant you bail, or
dealing with a bail variation application.
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6
Does your criminal record ever disappear?
6.1
Does your juvenile record disappear when you turn 18?
No, it’s much more complicated than that!
6.2
What does it mean if your conviction is spent?
Most convictions will become “spent” after a certain period of “crime-free” time. This
means that, for most purposes, the conviction is no longer part of your criminal record.
In general, you don’t have to disclose spent convictions (and the police can’t disclose
them) to anyone. However, even when a conviction is spent, it still remains part your
criminal history and may lawfully be disclosed in some circumstances.
6.3
What convictions can become spent?
Most convictions imposed for offences in NSW can become spent.
Some convictions can never become spent, including:

offences that involved a prison sentence (not a juvenile control order) of more than 6
months; and

sexual offences.
6.4
When is a conviction spent?
A conviction is spent on completion of the relevant crime-free period, which is:

3 years, for Children’s Court convictions;

10 years, for convictions from any other court.
The crime-free period is a period after the date of your conviction during which you
have not been:

convicted of an offence punishable by imprisonment; and

in prison because of a conviction for any offence; and

subject to a juvenile control order; and

unlawfully at large (eg. having a warrant out for your arrest).
6.5
Traffic offences
Traffic offences are treated separately from non-traffic offences.
Traffic offences are usually not taken into account in calculating the crime-free period for
a non-traffic offence (and vice versa). There are some exceptions for serious traffic
offences such as dangerous driving causing grievous bodily harm or death.
6.6
Can spent convictions be revived?
Spent convictions are not revived by later convictions. Once a conviction is spent, it is
spent for good.
6.7
Disclosure of spent convictions
In general, you are not required to disclose a spent conviction to anyone.
If you are asked on a job application about prior convictions, you do not need to mention
spent convictions, unless you are applying for certain jobs (see part 5 above). If an
employer later discovers your spent convictions, they cannot sack you for dishonesty.
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Where an Act or Regulation refers to a conviction, it is taken to refer to unspent
convictions only. Where an Act allows a person’s “fitness” or “character” to be taken into
account, spent convictions usually cannot be taken into account.
Unlawful disclosure of someone’s spent convictions is an offence. It is also an offence to
unlawfully obtain information or to try and obtain information about someone’s spent
convictions.
6.8
Lawful disclosure of spent convictions
Police can disclose your spent convictions to a court.
Police can inform other law enforcement agencies about spent convictions in some
situations.
A law enforcement agency can, in the discharge of its duties, make information relating
to a spent conviction available to another law enforcement agency. These agencies
include (but are not limited to) the police, Crime Commission, Attorney-General (State,
Territory or Commonwealth), the Director of Public Prosecutions and the Crown
Prosecutors.
6.9
Commonwealth offences
Most criminal offences are covered by State law, and young people are not often
charged with Commonwealth offences. Commonwealth offences include social security
fraud, tax and customs matters, and telecommunications offences (eg using a carriage
service to menace, harass, or offend).
A conviction for a Commonwealth offence will be spent if you:

have been granted a pardon for a reason other than that you were wrongly convicted
of the offence; or

were not sentenced to imprisonment for the offence, or were not sentenced to
imprisonment for more than 30 months, and the waiting period for the offence has
ended. The waiting period is 5 years from the date of a juvenile conviction, or 10
years from the date of an adult conviction.
As with NSW law, there are exceptions to the non-disclosure of spent convictions. The
main one is that spent convictions need to be disclosed where a person is seeking
employment with a law enforcement or intelligence agency.
7
Copies and corrections of records
7.1
Applying for a National Police Check
You can apply for a National Police Certificate by filling in a form and paying a fee
(currently $52 for national name and date of birth check).
Application forms are available online (go to www.police.nsw.gov.au, “services”, ”criminal
records”, then click on the “lodge an application for a national police check” form).
Once you have completed the application form, print the confirmation page, take it with
proof of your identity to any NSW Police station, and pay the fee. It will take a minimum
of 10 business days for applications to be processed.
The certificate is based upon a check of the National Names Index (NNI) using the
name, date of birth (and if applicable) fingerprints supplied by the applicant.
A National Police Certificate contains information relating to “disclosable court
outcomes”. Convictions considered “spent” under state and federal legislation may not
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be included in the National Police Certificate unless the category of employment or
purpose of the check is exempt from relevant legislation.
7.2
Applying for a working with Children Check
If you are applying for a job working with children, you must do a Working With Children
Check. This is administered by the Office of the Children’s Guardian and not the police:
http://www.kidsguardian.nsw.gov.au/working-with-children/working-with-children-check.
7.3
Applying for a copy of your criminal history
If you do not require a National Police certificate for the purposes of visas, employment,
etc, you may wish to apply for a copy of your personal criminal history.
You can apply through the Police Information Access Unit (GIPA), by filling out the
“Formal Access Application Form (includes Bail Report)”, available online
(https://www.police.nsw.gov.au/services/information_access_unit_gipa). The application
fee is $30 (or $15 if you are currently receiving Centrelink benefits).
Mail the completed form with the fee to:
NSW Police, Information Access and Subpoena Unit
Locked Bag 5102, Parramatta NSW 2124
Or email the form to gipaapp@police.nsw.gov.au, with a credit card authority.
7.4
Removing spent convictions from your criminal record
Spent convictions should be automatically deleted from your criminal record once they
become spent. If you want to make sure this happens, you may write to:
Criminal Records Section, NSW Police Force
Locked Bag 5102, Parramatta NSW 2124
Phone: (02) 8835 7888
Email: crs@police.nsw.gov.au
7.5
Changing a mistake on your criminal record or on police computer system
If you believe there is a mistake on your criminal record, or on the police system, you
should contact the Criminal Records Section (contact details above).
The Shopfront Youth Legal Centre
Updated May 2015
The Shopfront Youth Legal Centre
356 Victoria Street
Darlinghurst NSW 2010
Tel: 02 9322 4808
Fax: 02 9331 3287
www.theshopfront.org
shopfront@theshopfront.org
The Shopfront Youth Legal Centre is a service provided by Herbert Smith Freehills, in association
with Mission Australia and The Salvation Army.
This document was last updated in May 2015 and to the best of our knowledge is an accurate
summary of the law in New South Wales at that time.
This document provides a summary only of the subject matter covered, without the assumption of
a duty of care. It should not be relied on as a substitute for legal or other professional advice.
This document may be photocopied and distributed, or forwarded by email, on the condition that
the document is reproduced in its entirety and no fee is charged for its distribution.
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